Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fair v. Weiburg

September 28, 2006


The opinion of the court was delivered by: Kenneth M. Karas, Usdj


Plaintiff Ayinde Fair, a pro se prisoner, alleges that Defendants Captain John Weiburg and Correction Officer Giselle Prince are responsible for injuries he suffered when he was attacked by other inmates while incarcerated as a pre-trial detainee at Rikers Island Correctional Facility. Specifically, Plaintiff claims that Defendants violated his civil rights by failing to prevent him from being stabbed by another inmate, placing him in an inadequate holding cell after he was treated for his wounds, and failing to immediately provide him with a telephone call to his family after the incident. Plaintiff brings this lawsuit for damages pursuant to 42 U.S.C. § 1983 and related state causes of action.

Defendants have moved for summary judgment on the grounds that: (1) Plaintiff has failed to demonstrate that Defendants acted with deliberate indifference in violation of his constitutional rights; (2) Plaintiff failed to exhaust his administrative remedies; (3) Defendants are entitled to qualified immunity; and (4) that the putative state law causes of action are time-barred. For the reasons discussed below, the motion is GRANTED.

I. Background

In November 1999, Plaintiff was incarcerated as a pre-trial detainee on Rikers Island Correctional Facility, housed at the James A. Thomas Center 5 Block ("JATC 5 Block") "B" side. (Pl.'s 56.1 ¶ 2) Though Plaintiff was identified by the Department of Correction as being a member of the Bloods gang, (Defs.' 56.1 ¶ 3), Plaintiff denies such affiliation. (Pl.'s 56.1 ¶ 3) Plaintiff did not have a history of problems or altercations with other inmates, (Defs.' 56.1 ¶ 47) and had neither concern for his safety nor fear for his life prior to an attack which occurred on November 27, 1999. (Defs.' 56.1 ¶ 41) This was in spite of the fact that he had seen contraband and weapons in JATC 5 Block and he had seen inmates with weapons in the common housing area in JATC 5 Block. (Defs.' 56.1 ¶¶ 42-43) Plaintiff never expressed fear or complaints about his safety, including the threat from other inmates, to either of the Defendants or any other Department of Correction staff. (Defs.' 56.1 ¶¶ 47-58)

Plaintiff and Defendants agree that at least one altercation occurred on the night of November 27, 1999, though the sequence of events is disputed. (Pl.'s 56.1 ¶ 4, Defs.' 56.1 ¶ 4) According to Plaintiff, Plaintiff was assaulted by another inmate. (Pl.'s 56.1 ¶ 5) After this first assault, Plaintiff alleges that he and other detainees were removed from the block and questioned by Defendant Captain Weiburg. (Pl.'s 56.1 ¶ 8) After talking with the Captain, Plaintiff returned to the block, where he alleges he was again assaulted by other inmates. (Pl.'s 56.1 ¶ 9) During this second altercation, Plaintiff was stabbed three times in the back by an unidentified inmate. (Pl.'s 56.1 ¶ 9) Plaintiff claims he does not know who stabbed him. (Defs.' 56.1 ¶ 24) Plaintiff alleges Defendant Officer Prince was not at her post in the "B" side at the time of the second fight, and that had she been at her post she would have been able to prevent Plaintiff's injury. (Pl.'s 56.1 ¶ 10)

Defendants' version of the facts differs from Plaintiff's. According to Defendants, there was only one fight, and Captain Weiburg never met with Plaintiff before he was stabbed. (Defs.' 56.1 ¶ 11) Additionally, Defendants assert that Officer Prince was at her post on the "A" side, where she was relieving another officer who was taking a meal break, and was not assigned to the "B" side post to which Plaintiff alleges she was assigned. (Def.'s 56.1 ¶¶ 6-8) Defendants admit that Plaintiff was stabbed by another inmate. (Defs.' 56.1 ¶ 11) However, after Plaintiff was stabbed, Officer Prince observed other inmates running with broom sticks in their hands but she did not see Plaintiff at that time. (Defs.' 56.1 ¶¶ 12-17) Officer Prince then sounded her personal alarm. (Defs.' 56.1 ¶ 16) The officer assigned to the "B" side post then arrived and observed other inmates chasing Plaintiff and yelling to "trap him off." (Defs.' 56.1 ¶ 20) Captain Weiburg then arrived with the probe team, responding to Officer Prince's alarm. (Defs.' 56.1 ¶ 26) After investigation of the incident, it was discovered that there was contraband which could be used as weapons in the JATC 5 Block. (Defs.' 56.1 ¶ 40)

After the attack, Plaintiff was transported by stretcher from the JATC 5 Block to the clinic. (Pl.'s 56.1 ¶¶ 11-12; Defs.' 56.1 ¶ 30) He was then transported to Elmhurst Hospital for medical treatment, where he stayed the night. (Pl.'s 56.1 ¶¶ 13-14; Defs.' 56.1 ¶¶ 31-32) Plaintiff's wounds did not require stitches or surgery. (Defs.' 56.1 ¶ 33) Plaintiff returned to the JATC the next morning, November 28, 1999, and was placed in a holding cell which Plaintiff alleges contained only a narrow bench too small for him to lie down. (Pl.'s 56.1 ¶ 16) According to Plaintiff, he remained there all day until he was taken back to his cell in the JATC 5 Block for the night. The next day, he was returned to the holding cell, after which he was transferred to the George R. Vierno Center ("GRVC"), a separate prison on Rikers Island. (Pl.'s 56.1 ¶¶ 16-20) Plaintiff claims that while in the holding cell, he requested a phone call to his family, but was never provided access to a phone. (Pl.'s 56.1 ¶ 23; Defs.' 56.1 ¶ 66) Plaintiff did not, however, ask either of the Defendants personally for permission to make a phone call. (Defs.' 56.1 ¶ 68) Plaintiff did place a telephone call to his mother upon his transfer to the GRVC. (Defs.' 56.1 ¶ 67)

Plaintiff claims that he filed a grievance regarding his placement in the holding cell and regarding the stabbing, but that he did not hear anything about those grievances. (Pl.'s 56.1 ¶ 21) The Rikers' grievance procedures are spelled out in the Inmate Rule Book, which was allegedly given to Plaintiff upon his entry to the Rikers facility. (Defs.' 56.1 ¶¶ 70-75) After the incident, Plaintiff filed a Notice of Claim with the City of New York Office of the Comptroller. However, because he filed it more than ninety days after the incident, the Comptroller rejected it as untimely. (Defs.' 56.1 ¶¶ 59-61; Pl.'s 56.1 ¶ 22)

II. Discussion

A. Standard of Review

To prevail on a motion for summary judgment, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits" must show that there is no "genuine issue" as to any material fact. Fed. R. Civ. P. 56(c). The burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). All inferences must be drawn in favor of the non-moving party. See id. at 69-70. To avoid summary judgment, however, the non-moving party must offer "some hard evidence" of its version of the facts, not merely rely on conclusory allegations or speculation. D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998); see also McPherson v. N. Y. City Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment."); Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) ("[The non-movant] must do more than show there is some metaphysical doubt as to the material facts" (internal quotations omitted)). Only when no rational jury could find in favor of the non-moving party should a court grant summary judgment. See Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2002).

Substantive law governs the materiality of the facts considered. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); D'Amico, 132 F.3d at 149. When considering a summary judgment motion, courts are not charged with weighing the evidence and determining its truth; instead, courts must determine whether there is a genuine issue for trial. See Castro v. Met. Transp. Auth., 04 Civ. 1445, 2006 WL 1418585, at *2 (S.D.N.Y. May 23, 2006); Westinghouse Elec. Corp. v. N. Y. City Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y. 1990). The goal of this inquiry should be to "isolate and dispose of factually insupportable claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

Pro se parties are entitled to "extra consideration" and "special latitude" on summary judgment motions. Salahuddin v. Coughlin, 999 F. Supp 526, 535 (S.D.N.Y. 1998). Therefore, this Court must read a pro se litigant's supporting papers liberally, interpreting them "to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (internal quotations and citations omitted). This does not, however, "relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). In particular, "a pro se party's bald assertion, completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lyerly v. Koenigsmann, No. 04 Civ. 3904, 2006 WL 1997709, at *2 (S.D.N.Y. July 17, 2006) (internal quotation marks omitted). The Local Rules of this Court require that affidavits in support of pro se motions ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.